In a long-awaited opinion, the Pennsylvania Supreme Court has recently declined to adopt the Restatement (Third) of Torts in product liability cases, ruling instead that the strict liability regime of the Restatement (Second) will continue to govern. In its 137-page opinion, however, the court overruled Pennsylvania’s longstanding approach to the Second Restatement, abandoning the previously stringent separation between strict liability and negligence.

The practical impact of Tincher v. Omega Flex, Inc. remains to be seen, but it is clear that the court attempted to restore order to Pennsylvania’s application of strict products liability. First, the court clarified that product defect claims will continue to be governed by the Restatement (Second) of Torts Section 402A. Second, in a fundamental change to existing law, the court held that plaintiffs may prove the existence of a defect using either a consumer expectations test (i.e., the product’s risks are “unknowable and unacceptable to the average person or ordinary consumer”) or a risk-utility test (i.e., that “a reasonable person would conclude that the probability and seriousness of harm … outweigh the burden or costs of taking precautions”). Moreover, the court held that the existence of a defect is a question of fact for a jury.

Tincher reverses decades of case law—and specifically, Azzarello v. Black Bros. Co. In Azzarello, the court ruled in 1978 that a jury charge addressing whether a product was “unreasonably dangerous”—the standard of the Second Restatement—improperly introduced negligence principles into the strict liability analysis. To impose rigid separation of those strict liability and negligence principles, Azzarello held that the existence of a defective condition was an issue of law to be decided by the trial court. The attempt to separate that question from those presented to the jury led to substantial confusion in the decades that followed.

Adding to that confusion, the U.S. Court of Appeals for the Third Circuit in 2009 inaccurately predicted that Pennsylvania would adopt the Third Restatement. According to the Third Circuit, doing so would “eliminate[] much of the confusion that has resulted from attempting to quarantine negligence concepts and insulate them from strict liability claims.” In Tincher, the Pennsylvania Supreme Court agreed with the Third Circuit in principle—negligence cannot be so neatly quarantined from strict liability—but declined to adopt the Third Restatement, and federal courts will need to adjust accordingly.

The impact of Tincher cannot be overstated. It fundamentally restates both the legal standards and procedural application of Pennsylvania product liability law. Further, although declining to adopt the Third Restatement, the court cited favorably to certain elements of it, ultimately concluding that whether to adopt it is a question for the Legislature. In the end, while product liability lawyers and their clients will watch closely how trial courts implement these new standards—and substantial room for additional advocacy exists in that process—the Pennsylvania Supreme Court has provided much-needed clarity.

Ballard Spahr’s Product Liability and Mass Tort Group has substantial experience defending a wide range of products against defect claims, in both single-plaintiff and class action litigation. For more information, please contact Neal Walters at 856.761.3438 or, Philip N. Yannella at 215.864.8180 or, or Michael R. Carroll at 856.761.3452 or


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